Decreeing and establishing a constitutional order: Kenya’s challenge

At the start of the present millennium, Kenyans participated in an extensive and wide ranging review of the constitution to give ourselves an inclusive and participatory democracy and acknowledge the sovereignty of the people. The special goals were to ensure that the basic needs of Kenyans were met, and that power was decentralised at levels of government where people could participate effectively in decision making. Closely related were the goals of good governance, the rule of law, and the accountability of public leaders and officials. These goals were formulated after a series of national conferences at the end of the 1990s at which it was also agreed to consult the people widely on the new constitution. The review, managed by the Constitution of Kenya Review Commission (CKRC), provided Kenyans for the first time ever the chance to decide on the values and rules by which they wished to govern themselves – an opportunity they grasped enthusiastically and constructively. The CKRC reports and records show copiously what Kenyans want. So, at least on the question of the constitution Kenyans want, this conference need not spend much time. My primary focus therefore is not on the necessary constitutional reforms, but why we have failed to achieve them despite so much effort.

I am often asked: Would Kenya have been a better place today if the ‘Bomas’ draft had not been sabotaged? Here we have to make a distinction between the enactment of a constitution and the adherence to its values, institutions and procedures. A constitution by itself makes no difference. I intend to consider the impact of constitutions and the difficulties of creating a new constitutional order. In recent decades, numerous states have adopted new constitutions or embarked upon a journey to give themselves a new constitution, in the belief that the constitution would solve complex problems of modern societies, strengthen state institutions, ensure the integrity and accountability of governments, promote human rights and social justice, and lead to the renewal of society and the affirmation of its values. Others have turned to constitutional negotiations and reform as a way out of long-term conflicts, to find a basis for peaceful coexistence. In most cases these expectations have not materialised. Why?

PROCESS FOR AND DRAFT OF THE BOMAS CONSTITUTION

In order to set the context for answering these questions, I want to quote from my address to the Kenya National Constitutional Conference (popularly known as ‘Bomas’, where it met) when it was convened in April 2003. I was reporting on the work and recommendations of the Constitution of Kenya Review Commission, and began by giving reasons for and the background to the review.

BACKGROUND TO THE REVIEW

The current struggle for constitutional reform began over 12 years ago. Many people gave their lives and limbs, and others made numerous sacrifices, in their attempt to give us a better instrument of governance. These people were driven by their love of the country and the passion for social justice and the dignity of individuals and communities. It has now fallen to this conference to complete the task they began. I am sure that all the delegates realise the heavy moral and intellectual responsibilities that have been cast upon them.

Very briefly, the background to the review of the constitution lies in our history of the last forty years – in the dismantling of freedoms and democracy following independence; establishment of one party rule; enactment of draconian laws like preventive detention, and the intimidation of those who dared to criticise the government; emergence of a highly personalised system of rule, with heavy reliance on patronage; corruption and plunder of the state; the decline of the rule of law; the transformation of the police from being protectors of the people to becoming their oppressors; the subordination of the judiciary to the executive; and marginalisation of social groups and communities and the sufferings of extreme poverty.

In this environment it became irrelevant whether an act of the president or the government was based on legal authority or not – presidential word substituted for the law. Predictability, which depends on clear rules of law, became dependent on the ability to read the whims of the president. There was massive misappropriation of state resources, and unbelievable greed in which the concerns of the nation, of present and future generations, were sacrificed to personal accumulation.

The institutions of the government and economy decayed under the shadow of a powerful president and his inner circle. These institutions became merely instruments of support to the government, and electoral processes were twisted to serve the ruling party. Power was centralised at the centre, and in the hands of the president. There was no effective separation of powers. Parliament became ineffective. There were few institutions for accountability, such as an ombudsman, and such institutions as existed, like the auditor general, or the attorney general, were rendered toothless. There was no easy access to public service or other state agencies; merit as the criterion for appointment or promotion was replaced by political or ethnic connections, or monetary payments. There was a sharp decline in the economy and the breakdown of the infrastructure, decreasing levels of production and export, illegal acquisition of huge tracts of land without productivity, and massive unemployment. People increasingly lost access to the most basic necessities of life, their life scourged by poverty, while a few lived in unimaginable affluence. Guarantees of the security of person or business disappeared. Consequently there was a massive retreat from public life, an inward-lookingness, a lack of openness and trust, and pervasive fear which drove many into exile.

The movement for reform was a response to this total collapse of constitutionalism, that is to say, the arbitrariness of the exercise of state power, the refusal of the government to respect limits on its power or authority, the disregard of the rights of people, the absence of checks and balances, and consequent lack of the separation of powers. The movement took the form of constitutional reform because the problems the country faced were seen to arise from bad and oppressive governance, and the lack of respect for constitutionalism. This reform agenda found its way, via a series of national conferences, into the Constitution of Kenya Review Act. The act provides a vision of Kenya as the guide to the new constitution.

VISION OF KENYA

A constitution is many things. One of these is a vision of the country and a statement of its values. This indeed has to be the starting point for designing the constitution. What is the vision of Kenya on which the CKRC operated? The Review Act was our starting point. The Act envisages a republic which is at peace with itself and its neighbours. The welfare of the people is its primary goal. This goal is to be attained through national unity and a consensual basis of authority and decision making. But the concept of the welfare of the people does not mean that the people are passive recipients of state largesse. Kenyans are no longer subjects subordinated to external authority. They are citizens who control their destiny and organise state and society through the values and procedures of democracy. The democracy through which Kenyans decide their destiny is not rule by majority, without regard to the interests of others. It is based on the protection of the rights of individuals and communities. Rights constitute the fundamentals of our democracy because they protect the legitimate space of the autonomy of individuals and communities, and compel the state to respect basic rights and procedures. Nor is the democracy envisaged in the act merely representative, in which people vote every five years and then become powerless. Instead, it envisages a citizenry actively engaged in public affairs. These citizens participate continuously in the governance of the country through the devolution and exercise of power. They keep a constant vigil over those who claim to act on their behalf, politicians and governments. It is a democracy in which the free exchange of ideas is actively promoted, particularly by giving people information and resources.

There is also the vision of Kenya as a nation of great diversity – of ethnic origin, religion, culture, traditions and geography – living in peace and harmony. The act says that we must respect and cherish this diversity, for we are the richer as a result. The accommodation of diversity is not easy. Total recognition of diversity in all its manifestations will make us a patchwork of communities, not a nation, with little to hold us together and no values or procedures to mediate relations between communities. Yet to force us all in a common mould is to deny individuals and communities the deepest impulses that define their identity – and to lay the foundations of conflict. A balance has to be struck, assisted by a core set of national values and aspirations – without unnecessarily jeopardising the legitimate interests of minorities. It was evident to the commission as it toured the country and met people in all provinces that they do subscribe to a common core of values, and that the differences between the various communities pose no threat to our unity or common purpose, especially when the differences can be accommodated in the private or familial sphere.

Another component of the vision of Kenya is that of a caring society in which the basic needs of all its members are provided for. There is no reason why any Kenyan should be without shelter, or go hungry, or be deprived of opportunities for education and employment. Society bears special responsibilities for the welfare of its vulnerable members – the aged, the children, the disabled and women. Through the Review Act, Kenyans have committed themselves to an equitable framework for economic growth and equitable access to national resources in which the basic needs of Kenyans would be met. I believe this formula captures very well the nature of our obligations to the disadvantaged. It is not charity that the disadvantaged ask of us, but fair policies and opportunities. The enormous disparities that exist in our society between the rich and poor, the privileged and the disadvantaged are not the natural order of things. They are manmade, by the plunder of state and communal resources, and by policies that favour particular groups and classes. Kenyans want the proper and honest management of our national resources and they want equal opportunities for all. They want a caring, humane and just society. No country can be proud of itself if over 60 per cent of its people suffer in extreme poverty while 10 per cent live in great affluence.

We also have a vision of Kenya as a responsible member of Africa and the international community. We want to play our proper role in the emerging global politics and institutions. We want to promote and facilitate regional and international cooperation to ensure economic development, peace and stability and to support democracy and human rights.

To translate this vision into a constitutional instrument was the mandate of the commission and is now that of the conference. But the act also says that we have to reflect the wishes of the people. There is a great deal that unites Kenyans in their views on where the nation is now, and what went wrong in the past and what the future should be. In their numerous submissions, individuals, communities and organisations largely endorsed the vision of Kenya described above – in part by emphatically rejecting its opposite, which is the reality of Kenya as they perceived it (corrupt, uncaring, exclusionary, groups large and small held in contempt and mired in poverty). People want a Kenya which respects human dignity, ensures social justice, provides for the disadvantaged, does not marginalise communities or minorities, has proper respect for the culture of groups who want to preserve their traditional life style, and treats nature with greater consideration for present and future generations. People want more control over decisions which affect their lives and bring government closer to them. They want leaders who are honest, responsive and accountable. It is the responsibility of this conference to lay the foundations for this vision.

As all of you know, the process of making the draft of the CKRC was extremely participatory, and Bomas itself was broadly representative of the communities and regions of the country.

ON THE PITFALLS OF CONSTITUTION MAKING

The review or making of constitutions are subject to many hostages. A participatory and lengthy process that we adopted in 2000 is particularly vulnerable, on at least two grounds. The first is the many hurdles the process may have to cross, strewn with what can become landmines. The 2000 process had three major phases: the CKRC consultations with the people and the preparation of a draft constitution, the Kenya National Constitutional Conference (Bomas) which debated and adopted the constitution, and Parliament which had to enact or reject the Bomas constitution (but had no power to amend it). With some oversimplification, we may say that the CKRC phase represented the professional stage, when independent experts, in consultation with the people, and in accordance with national goals, prepared a draft constitution. The second phase was the stage of deliberation and consensus building, through the representatives of the people, regions/communities, and civil society. In the final, parliamentary phase, politicians had a veto, against logic and democracy. It was illogical because all the MPs were automatically members of Bomas where they had ample opportunities to have their say and to persuade others of the rightness of their positions. It was undemocratic because MPs could override a decision of a much larger, democratic and legitimate body than Parliament.

Leaving the final say to MPs was also unwise. A constitution deals with many issues which are the concerns of the wider community of citizens, including the vision of the country, honest and effective administration, protection of individual and communal rights, social justice and fairness, the rights of the disabled, and safe custody of the environment and the welfare of future generations. It is critical that for proper, informed decisions on these matters, the decisions, and commitments, are made by a broad cross section of the nation. Experience in Kenya and elsewhere shows that politicians have a narrow interest in the constitution, concentrated on access to state power, and their own personal prospects of securing that access. If I think of the performance of most politicians, including ministers, at Bomas (and about half of them barely ever entered Bomas), they showed almost no interest in human rights and social policies, including environment and land policies. But they were passionately opposed to popular participation in and controls over the exercise of state power. They had little time for fair administration and public accountability of state officials.

The broad areas that interested them were the system of elections, the structure of government, and the devolution of power, and underlying these were individual and group advantages and disadvantages to them under proposals on these subjects. Politicians have common interests as a class: salaries and allowances, tax free receipts, minimising accountability to constituents, etc. But they have competing interests, principally related to access to power. Both the common and the competing interests were amply evident in Bomas. They achieved much in the area of common interests (deleting provisions in the CKRC draft on accountability, salary determination, and recall of MPs). But they were deeply divided about questions of state power and access to it, and particularly so because of the post-2002 election history, which meant that even the Cabinet was not united. Ultimately their differences, some even personalised in the sense that individuals’ analysis of their chances of power under a particular constitutional structure directed their strategies in the process, led to its sabotage.

This history suggests that there are good reasons why politicians should not be permitted to play such a decisive role in constitution making. Each politician, or at least each political party, will aim at provisions which ensure their access to power. A recent study has shown that when a party feels that it has majority support or that its leader is charismatic or highly popular, it would lobby for a presidential system and a party with weak support will lobby for a parliamentary executive. Similarly small parties will support a proportional electoral system while large parties support a majoritarian system. And chances are that politicians of all hues will resist accountability mechanisms, restraints on their benefits as parliamentarians or ministers, or measures of participatory democracy. Majority ethnic parties will support unitary government while minority ethnic parties will favour federalism or devolution. The ease with which politicians change their parties, at least in Kenya, demonstrates that they are totally unconcerned about questions of policy, integrity, and effectiveness. Consideration of the national interest seldom enters into their calculations. Since the constitution is so important to the personal interests of politicians, allowing them to determine the constitution is like making them judges in their own case! As early as the late 18th century the French Assembly tried to restrict, for a few years, the eligibility of constitution makers to hold state office.

And although popular participation in constitution making is increasingly favoured by both democratic theory and international law, we have to be realistic about limiting the role of politicians and political parties. Traditionally politicians played the key role in constitution making. Even today, a constitution process which does not have the support or at least the blessing, of a dominant political party is unlikely to reach fruition. Uganda, Tanzania and Ethiopia (to take only the example of our neighbours), were able to produce a constitution because of a dominant party, indeed a dominant leader. Kenya failed in 2004 and in 2005 because of the fragmentation of political parties, none of which had the capacity or the public support to push through a constitution. On the other hand, depending on the forums or rules for decision making, a minority party can prevent the adoption of the constitution. And as manipulators of ethnicity, political parties in multi-ethnic societies are able to mobilise ethnic opposition or support, unrelated to the merits of the draft constitution. as I feared happened with the famous ‘night meetings’ of Bomas members.

The review process in 2000–2004 was based on the assumption that politicians could not be excluded, but should not play the dominant role (they constituted about one-third of the National Constitutional Conference). Unfortunately, politicians played the ethnic card and minimised the impact of other social forces (even the Christian church, whose leaders allied themselves politically not by the teachings of the church but by their ethnic origins). Unless we change our attitudes to ethnicity and accept that other social forces should be given appropriate and greater importance, we shall remain prey to unscrupulous politicians.

The new process of constitution making is structured to give the dominant role to Parliament and political parties. So Kenyans ask, even if we get a constitution this time, will it be the politicians’ constitution or the people’s constitution? But there are not many bets on any new constitution. The new Review Act is full of hurdles and land mines, including an expensive and potentially very divisive referendum. And if we do get a new constitution in the spirit of the Bomas or even the referendum draft (the so-called ‘Wako draft’), there will be formidable difficulties in implementing it, some of which I mention below.

OBSTACLES TO ESTABLISHING CONSTITUTIONALISM

A particular difficulty in achieving constitutionalism in many states, given colonial history and the diversity of their people, is developing a sense of nationalism that encompasses the whole country. There are often stronger allegiances to the community or the region, and perhaps various, different world views within the country. It is likely that few pre-colonial institutions spanned the communities that now constitute the people of the state. In states where society provides cohesion, common values and stability, the role of the constitution is secondary, concerned more with law making and administration than with promoting national unity, which is taken for granted. However, in post-colonial multi-ethnic states, ‘nation building’ is an essential task of the constitution, involving agreeing on the purposes of the state and on the basis on which different communities coexist and share a common public space. In other words, its task is to establish a common political community, based on consensus. Almost everywhere this has proved an extraordinarily difficult task, because of the diminution of the value of citizenship and the corresponding constitutional recognition of communities as bearer of rights and obligations – through a number of legal devices, such as special electoral roles, regional autonomies, special land rights for communities, but more widely and even more negatively, through the political manipulation of ethnicity and administrative practices.

‘Nation building’ is the first of the two contracts that constitute a state (first agreeing to form a political community or ‘nation’, and then agreeing to form a state). In many places, the two contracts have been conflated, so that the agreement on forming a community is achieved simultaneously with establishing values and institutions of the state – and indeed through it. This renders very difficult not only constitution making (as the African experience demonstrates) but also constitution implementation, because it is impossible to rely on balances within civil society and its institutions as they operate in states with longer common histories and more shared cultural values.

In brief, historically, the process of formation of the political community preceded the establishment of democracy. Today, in many countries, constitutions have to perform these two tasks, now enormously complicated, simultaneously. As there can be serious tensions between the two tasks, the role of the constitution in establishing democracy is exceedingly complex and difficult. In order to understand the difficulty of creating a constitutional order in these circumstances, it is necessary to appreciate that the constitution, as fundamental law, is supposed to provide the framework within which state laws and policies must be conducted. It seeks to ensure the smooth operation of the political system by de-personalising power, and by channelling the expression of views and competition through prescribed institutions in accordance with clearly understood and valued procedures as well as facilitating the resolution of differences and disputes that inevitably arise. The constitution provides both legality and ideology.

Few leaders have tried to create a sense of a common identity and destiny among Kenyans (or, as I show later, to establish respect for the constitution). They have been content to encourage and promote sentiments of ethnicity and tribalism, as a way to ensure for themselves the votes of their kin people. At no point are these sentiments stirred up more sharply than at elections, which have traditionally been a period of great tension and often considerable violence. The failure to create a sense of a common nation has tended to valorise hatred and violence, by the state and communities at the behest of ethnically based politicians. In these circumstances, constitutional values like human rights, equality, limits on power, and the rule of law have been devalued, even discarded. Today this situation poses the greatest obstacles to the growth of constitutionalism and the ability of the constitution to lay the foundations of the state and its relationships to communities as well as relations between communities.

The National Accord paid some attention to the lack of national sentiments and promoted the National Ethnic and Race Relations Commission Bill (May 2008) to remedy the situation. The memorandum of objects and reasons accompanying the bill explains that the political crisis of 2008 ‘brought to the surface deep-seated and long standing divisions within the Kenya society’. It says that ‘lasting peace and co-existence cannot prevail in Kenya unless the various Kenyan communities cultivate goodwill among each other and have equal access to various opportunities that may arise without discrimination grounded on ethnicity’. The bill ‘recognises the need to deal effectively with the negative aspects of tribalism and ethnicity which has pervaded various levels of the Kenyan society’. However, in a typically Kenyan way, the solution sought is bureaucratic procedures, by state appointed commissioners with the mandate to promote good will among communities. Some concrete ways in which this can be done are actually laid down in the bill. But the unimaginative bill gives the commission no powers to achieve its difficult and sensitive mandate. Yet another state body will be established, duplicating the mandate of other bodies like the National Human Rights Commission and the judiciary, and will no doubt languish like the Anti-Corruption Committee, established a few years ago with much fanfare. The bill’s basic flaw is the failure to recognise that the problems of ethnicity and racism are fundamentally political and social, and that the primary responsibility for harmony and solidarity across communities lies with political leaders.

CONSEQUENCES OF THE REJECTION OF CONSTITUTIONALISM IN KENYA

Most elements of the framework of constitutionalism are unacceptable to those who gain access to state power, for they interfere with their primary objective of accumulation. This has been the essence of the Kenya experience, where constitutionally sanctioned power has been exercised or abused in the name of ethnicity but in practice deployed it for personal aggrandisement. As the analysis in the Waki Report on Post-Election Violence in Kenya so clearly and vividly demonstrates, the process of accumulation cannot easily be secured within the parameters of a democratic constitution through mechanisms and procedures for accountability. Indeed the point that emerges with sharp and sad clarity is that it is only by constant and systemic violations of the constitution and the law that this political class is able to accumulate and establish its control over society – and its opponents.

The horrendous consequences of these violations are graphically described in the Waki Report: corruption, institutionalisation of violence, the extensive use of militias, and the loss of the state monopoly of force (with weaknesses and divisions in state security forces). In particular the report emphasises the role and prevalence of violence in Kenyan politics and society. It attributes many failings of the state to the personalisation of power in the president (and with it the absence of the separation of powers). The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in other violations of the law. There is little accountability for the exercise of public power. Impunity for the friends of the regime and for compliant state officials is rampant, and indulged in despite public outcry. All these demonstrate the absence of the rule of law. The way successive presidents have governed (or rather misgoverned) Kenya is proof that these violations are not deviations from the norms; in fact they are the norm.

Serious consequences in terms of the loss of legitimacy of the state follow from this. The state is not perceived as a social and political force for the common good. It is regarded, accurately, as partisan, throwing its weight behind specific communities and interests. The subordination of the electoral commission, the police, and the judiciary to the executive has resulted in their inability to resolve national problems, though this is why they are set up, with independent powers. The police are particularly singled out by the Waki Commission for their failure to ensure Kenyans’ security, and in the result are held responsible for numerous murders, rapes, and the displacement of the people. They are no longer able or willing to protect the people against violence and plunder by private and politician-sponsored militias. The judiciary is so discredited that no one believed that it was capable of impartial adjudication of election disputes. The Waki Commission doubts the veracity of the statements of the attorney general about his attempts to enforce the law. The Waki Commission concludes that ‘Over time, this deliberate use of violence by politicians to obtain power since the early 1990s, plus the decision not to punish perpetrators has led to a culture of impunity and a constant escalation of violence.’ The government and politicians have not only sanctioned violence, but they have also ethnicised politics and violence. Consequently the state has failed to perform functions intimately connected with the exercise of public power, indeed major reasons why we establish a state in the first place.

ESTABLISHING A CONSTITUTIONAL STATE

At a technical level, the enforcement of a constitution once adopted revolves around three elements: ‘implementing, promoting and safeguarding’. To implement a constitution means to give full expression to its provisions: making new laws and policies to give effect to them, setting up new institutions (and vesting them with powers and resources adequate for their responsibilities), and repealing laws inconsistent with them.

To promote the constitution means enforcing these laws, respecting rights and freedoms of the people, developing constitutional norms, sustaining institutions and the rule of law, holding regular elections, providing access to justice, resolving disputes in accordance with the constitution, and facilitating the participation of the people in public and state affairs.

Safeguarding the constitution means to protect the constitution against hasty amendments which detract from the values of democracy, constitutionalism and the rule of law. Attacks against which it must be safeguarded also include the distortion of constitutional norms through practice and disregard of the law and the avoidance of unnecessary resort to emergency powers. Safeguarding means, in extreme cases, protection against overthrow of the constitution through illegal measures, such as military coups.

But the experience in Kenya and other places shows that technical issues are secondary to the political. It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s life. A living constitution is one which people use in their daily existence, which governs and controls the exercise of state power, and which promotes the values and aspirations expressed in it. The fortunes of a constitution are shaped by many factors: personalities and elites, political parties and other organisations, social structures, economic changes, traditions of constitutionalism – and by the rules and institutions in the constitution itself (such diversity that a distinguished political scientist, Jon Elster, argues, although not without opposition from other scholars like Sartori (1997), that it is impossible to predict the consequences of a constitution, because one cannot foretell the ‘net long term equilibrium effects of major institutional changes’ and ‘piecemeal social engineering is of little help as a remedy to this theoretical deficit’).

For other reasons, despite the emphasis placed by Kofi Annan, other eminent Africans, Kenyans and the international community, on constitutional reform, there is no guarantee that many of the reforms proposed by them and the Kriegler and Waki Commissions will help to get Kenya out of the hole in which successive regimes have placed it. I have said enough to indicate how vested interests, among politicians, businesspeople, and the bureaucracy will sabotage reforms (as they have done ever since Kenya’s independence). Despite the ravages wreaked upon the state, it still remains the main means to accumulate wealth and power – and those who are in control of it will fight to maintain their control, regardless of the rules of the constitution.

It is hard to provide the answer to this dilemma, that the very sponsors of reform are its principal saboteurs. What we know is that constitutionalism cannot be willed; it must be established by deep commitment and sustained activity. The constitution cannot achieve anything by itself; like Marx’s commodities, it does not have arms and legs. It must be mobilised, acted upon, used, etc. This idea is also expressed by Granville Austin (2000), in his monumental study of the working and impact of the Indian constitution, who says that a constitution, however living, is ‘inert’. A constitution does not work, it is worked. He says his book is ‘about those who acted upon the Constitution, how and why they did so, and about those the Constitution acted upon, or neglected. It is about Indians working their Constitution…’

One way to understand the potential of a constitution to impose its imprint on state and society is to examine two key factors. One is internal to the constitution: the way in which it distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and protection of human rights. The balances within the constitution can do something to guide state institutions and empower the people. It is perhaps safe to say that constitutions may succeed in setting up institutions and giving them authority, but they often fail in the fulfilment of national values or directive principles – for the paradoxical reason that those who accede to these institutions may have little commitment to the values (it is interesting to note in this context that at Bomas, politicians paid almost no attention to values, but were obsessed about institutions, knowing well that if they got hold of institutions, they would be able to ignore values). As we know that most African constitutions contain excellent values and procedures. But they have, for the most part, failed.

They have failed in substantial part because of the second factor, which is external to the constitution – and that is society. The constitution operates within society and seeks to influence its development. It may set out guidelines for the exercise of power and the aspirations that the state must fulfil. But society also impacts on the constitution, sometimes giving it a push in the directions adopted in the constitution, and sometimes negating them. I have already indicated that in Africa we have placed unjustified reliance on the capacity of the constitution to influence society. I have also indicated that the political order intended to be set up by the constitution competes with other models and realities – and in the end it is society which has determined the extent to which the constitution will be observed, manipulated, or disregarded. We lack studies, in Africa, of the impact of society on constitutions – and not only our own societies, but also of external forces that bear on our lives. If there is to be a breakthrough in constitutionalism in Africa, such studies will be the first step.

We know now that the essential preconditions of a constitutional state are missing in Kenya: an independent judiciary, honest electoral commissioners, absence of impunity, policies that are inclusive, the rule of law – and most importantly, ethical and moral standards in public life. These difficulties are compounded by many unresolved problems of the past.

It is often stated that people’s participation in the constitution making process is essential for its success. There is undoubtedly some truth in this. But the CKRC and Bomas processes were highly participatory. People engaged actively in the review. In the process, they were educated into the broad principles of democratic and accountable government, the rights of the people, the principles of fairness and justice. Secondly, they were also empowered by the process, for they were, perhaps for the first time in our history, shown respect and listened to. The Constitution of Kenya Review Commission faithfully recorded their views and the draft incorporated most of their recommendations. Thirdly, they acquired knowledge of the proposed constitution, understood how it would have protected their rights, promoted democracy, social justice, etc, and increased their ability to use its protective provisions. However, in the face of intransigence on the part of a political faction, they were unable to safeguard the Bomas constitution. But, on the other hand, they were able to reject the mutilated version offered to them in the referendum – though for many reasons. Perhaps in these contrasting acts lies the explanation of the inability of the people to secure the constitution. For various reasons they are unable to take initiatives, but given opportunities, as the CKRC process did; they do take advantage of them and express their preferences in no uncertain terms. People as a whole are unorganised; there are few institutions which give them opportunities for decision making, participation, or consultation. On their own, in fragmented communities and groups, they are unable to assert their claims against the might and the guiles of the state.

The importance of redressing the balance between politicians and people remains. It requires the genuine empowerment of the people, promoting an awareness of public issues and procedures, the role of public institutions, familiarity with their constitutional rights and the mechanisms to protect and mobilise them, and institutions and opportunities to express their views and to demand accountability. But the privileged few (particularly politicians) have little interest in this form of empowerment. The Bomas constitution provided many entry points for civil society initiatives. Civil society institutions could bring legal actions on behalf of the disadvantaged and the voiceless, they could work with state institutions to establish standards and benchmarks for social progress and justice, they could mobilise the people to take advantage of provisions for public participation, they could inform and educate on constitutional issues, they could have played a critical role in the reporting to regional and international bodies on the fulfilment of Kenyan’s international obligations on human rights, they could have benefited from the freedom of information. This approach must continue, for democracy cannot be built from above.

In a multicultural society that politicians have also managed to ethnicise, there is great need for leadership, of the order of Gandhi, Nehru, Nyerere or Mandela. It is eas[ier] to foment ethnic hatred than to promote harmony – and the former is often seen as yielding higher political dividends. It is in this regard that our politicians have failed us all, miserably, and with great cost to society and economy. Contemporary constitutions, characterised by extreme distrust of politicians and bureaucrats, provide some institutional rules to encourage the spirit of the constitution. And in a paradoxical way, the constitution is devoted in substantial measure to neutralise politicians, regulate their conduct, and remove certain critical and sensitive powers and functions from them. The powers of state institutions are prescribed with greater precision; the purposes for which powers may be exercised are specified; and rules are established to remove conflict of interests through codes of conduct and other mechanisms. Collective rights supplement individual rights, with greater likelihood of resort to enforcement mechanisms. A number of politically neutral, independent institutions are set up to exercise sensitive functions, insulating them from political influences and manipulation (such as electoral commissions, auditing mechanisms for government accounts, prosecutors, public service commissions). Certain responsibilities (for which the government may not have much appetite) are given to independent commissions: human rights in general and those of vulnerable communities in particular, protection of the environment, prevention and control of corruption. There is a greater concern with enforceability: remedies are formulated, non-judicial bodies such as ombudspersons with enforcement powers supplement the judiciary, easier access to them and to the courts is provided.

Implementing a constitution is not about this or that provision, or even the totality of the constitution, important as these are. It is about the inculcation of a culture of respect for and discipline of the law, acceptance of rulings by the courts and other bodies authorised to interpret the law, giving effect to judicial decisions, acceptance of the limits on the government, respecting and promoting human and collective rights, the participation and empowering of the people. Ultimately the people have to be guardians of the constitution. To perform this role people have to understand the constitution and know their rights. They have to know how to use the machinery of the constitution and the law to hold public authorities accountable. They should be involved in the conduct of public affairs. They can also act as agents of accountability: for example by providing alternative budgets or analysing draft state budgets publishing annual assessments of the record of government and corporations of human rights, social justice, environment and natural resource policies, etc; providing alternative reports to regional and international human rights supervising bodies on the national record undertaking constitutional litigation to prevent the state or private interests from breaching the constitution or law.

To give a further impression of a living constitution, I end with another quote from Austin’s analysis (somewhat rosy in my view) of the Indian constitution. He says the constitution is ‘about politics and economics and conditions and culture, about politicians and civil servants and lawyers and judges and journalists and individuals, rich and desperately poor, and it is about success and failure and hope and despair and power and sacrifice and motivations, selfish and grand’. As a result, ‘The Indian Constitution is a live document in a society rapidly changing and almost frenetically political. The touchstone for public, and many private affairs, the Constitution is employed daily, if not hourly, by citizens pursuing their personal interests or in their desire to serve the public good. The working of the Constitution so fully expresses the essentialness of the seamless web and so completely reveals the society that adopted it that its study truly is a window into India’. This is certainly one version of constitutionalism – and we in Kenya are a long way away from it.

* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a Special Representative of the UN secretary general in Cambodia on human rights.
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